Bangalore District Court
Unknown vs M/S. Umrah Developers on 30 November, 2018
IN THE COURT OF XXXIX ADDITIONAL CITY CIVIL JUDGE
BANGALORE CITY
Dated on this the 30th day of November, 2018.
-: PRESENT :-
Sri.Khadarsab, B.A, LL.M.,
XXXIX Additional City Civil & Sessions Judge,
Bangalore City.
Original Suit No1683/2018
Plaintiff :
M/s.Valmark Realty Holdings Pvt. Ltd.,
a company incorporated under the
Companies Act, 1958, having its
registered office at No.133/1, "The
Residency" 10th Floor, Residency Road,
Bengaluru - 560 002. Rep. by its
Director, Mr.Ratan Lath.
[By Sri.A.Sampath, Advocate]
/ VERSUS /
Defendant:
M/s. Umrah Developers, a company
incorporated under the Companies Act,
having its registered office at No.22/1,
Kaveriappa Layout, Millers Tank Bund
Road, Vasanthanagar, Bengaluru - 52.
Rep. by its Managing Director Mr.Yousuf
Shariff.
[Ex-parte.]
: 02.03.2018
Date of Institution of the suit
Nature of suit : Money Suit
Date of commencement of : 01.10.2018
evidence
Date on which the judgment is : 30.11.2018
pronounced
Years Months Days
Duration taken for disposal :
00 08 28
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JUDGMENT
This suit is filed by the plaintiff against the defendant for recovery of Rs. 76,20,000/- along with interest at the rate of 12% p.a. from 25.11.2015 till the date of suit and also future interest at the rate of 18% from the date of suit till the date of realization.
2. The case of the plaintiff in brief is as follows : -
That, the plaintiff is a company incorporated under the Companies Act. The defendant represented to the plaintiff that it is the absolute owner of the property bearing Sy.No.46, Block-32/2 measuring 3 acres 20 guntas situated at Doddajala Village, Jala Hobli, Devanahalli, Bengaluru.
3. The plaintiff further averred that, the defendant further represented to the plaintiff that it had purchased the suit schedule property in terms of an auction held by the Government of Karnataka and shared the sale certificate issued by the Deputy Commissioner, Bengaluru District and order passed by Deputy Commissioner, Bengaluru dated 6.10.2010. Accordingly, plaintiff agreed to purchase the suit schedule property for Rs.4 Crores per acres. The total consideration for which the plaintiff agreed to purchase the suit schedule property is Rs.14 Crores. The defendant agreed for the offer made by the plaintiff and the contract came to be concluded on 25.11.2015. It was agreed that the defendant would execute a deed of absolute sale in favour of plaintiff on receiving the entire sale consideration. 11 months period was agreed to conclude the transaction. In pursuance of the intention to sell and purchase, the plaintiff transferred a sum of Rs.60 Lakhs as advance sale consideration on 25.11.2015. The said transfer was made to Corporation Bank by RTGS vide UTR No. CORPR 92015112503410013. The defendant has acknowledged the receipt of Rs.60 Lakhs paid by the plaintiff as advance sale consideration.
4. It is further averred that, Mr.Ratan Lath, the Director of the plaintiff and the defendant are acquainted for more than 20 years and have shared a cordial relationship. Though the transaction to sell and purchase the suit property was concluded, no formal written agreement was entered into between them. The plaintiff from the very beginning of the contract was always keen and ready to purchase the suit property by paying balance sale consideration. The plaintiff on several occasions contacted Mr.Yusuf Shariff, the Managing Director of the defendant and requested him to execute the sale deed in terms of the oral agreement. The defendant went on postponing the registration of the sale deed on one or the other reason. Therefore, the plaintiff got issued notice on 24.11.2017 calling upon the defendant to fix a date and time for registration of the sale deed. The said notice has been duly served upon the defendant. On receipt of the notice, the defendant gave reply stating that he has not at all promised to execute the sale deed in favour of the plaintiff. The defendant has refused to perform his part of contract, therefore the plaintiff has filed the present suit for recovery of Rs.60 Lakhs together with interest at the rate of 12% p.a.
5. After presentation of the suit, summons were issued to the defendant. Though the suit summons was served upon the defendant, defendant remained absent. Hence, the defendant placed ex-parte on 16.8.2018.
6. In order to substantiate its claim, the Director of the plaintiff - company examined as P.W.1 and documents got marked as Exs.P.1 to P.8.
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7. Heard the arguments.
8. On the basis of the pleadings, evidence and documents available on record, following points arise for my consideration : -
1) Whether the plaintiff is entitled for suit claim ?
2) What order or decree?
9. My findings to the above points are as follows:
Point No.1 : Partly in the affirmative. Point No.2 : As per final order, for the following:
REASONS
10. Point No.1 :- To substantiate its claim, the Director of plaintiff - company has been examined as P.W.1, who filed affidavit in lieu of examination-in-chief, wherein he has reiterated the plaint averments. In support of oral testimony, the plaintiff has placed reliance on the documents-Exs.P.1 to P.8. Ex.P.1 is the Resolution Extract dated 3.2.2018. Ex.P.2 is the copy of Memorandum of Association and Articles of Association. Ex.P.3 is Form No.41 issued by the Deputy Commissioner dated 6.10.2010. Ex.P.4 is the copy of the Notice dated 24.11.2017. Ex.P.5 is the Postal Receipt dated 25.11.2017. Ex.P.6 is the Postal Acknowledgment dated 27.11.2017. Ex.P.7 is the Reply given by the defendant dated 28.11.2017. Ex.P.8 is the Acknowledgment dated 25.1.2015.
11. According to P.W.1, the plaintiff is a company incorporated under the Companies Act. The defendant represented to the plaintiff that, it is the absolute owner of the property bearing Sy.No.46, Block-32/2 measuring 3 acres 20 guntas situated at Doddajala Village, Jala Hobli, Devanahalli, Bengaluru.
12. P.W.1 further averred that, the defendant further represented to the plaintiff that it had purchased the suit schedule property in terms of an auction held by the Government of Karnataka and shared the sale certificate issued by the Deputy Commissioner, Bengaluru District and order passed by Deputy Commissioner, Bengaluru dated 6.10.2010. Accordingly, plaintiff agreed to purchase the suit schedule property for Rs.4 Crores per acres. The total consideration for which the plaintiff agreed to purchase the suit schedule property is Rs.14 Crores. The defendant agreed for the offer made by the plaintiff and the contract came to be concluded on 25.11.2015. It was agreed that the defendant would execute a deed of absolute sale in favour of plaintiff on receiving the entire sale consideration. Eleven months period was agreed to conclude the transaction. In pursuance of the intention to sell and purchase, the plaintiff transferred a sum of Rs.60 Lakhs as advance sale consideration on 25.11.2015. The said transfer was made through Corporation Bank by RTGS vide UTR No. CORPR 92015112503410013. The defendant has acknowledged the receipt of Rs.60 Lakhs paid by the plaintiff as advance sale consideration.
13. P.W.1 further averred that, Mr.Ratan Lath, the Director of the plaintiff and the defendant are acquainted for more than 20 years and have shared a cordial relationship. Though the transaction to sell and purchase the suit property was concluded, no formal written agreement was entered into between them. The plaintiff from the very beginning of the contract was always keen and ready to purchase the suit property by paying balance sale consideration. The plaintiff on several occasions contacted Mr.Yusuf Shariff, the Managing Director of the defendant and requested him to execute the sale deed in terms of the oral agreement. The defendant went on postponing the registration of the sale deed on one or the other reason. Therefore, the plaintiff got issued notice on 24.11.2017 calling upon the defendant to fix a date and time for registration of the sale deed. The said notice has been duly served upon the defendant. On receipt of the notice, the defendant gave reply stating that he has not at all promised to execute the sale deed in favour of the plaintiff. The defendant having refused to the contract, therefore he prays for decreeing the suit together with interest at the rate of 12% p.a.
14. The advocate for plaintiff argued that the defendant has entered into the contract with the plaintiff. The defendant not performed its part of contract. Therefore, the plaintiff has got issued the notice to the defendant as per Ex.P.4 dated 24.11.2017. The said notice has been duly served upon the defendant as per Ex.P.6. Though the said notice has been served upon the defendant, the defendant has not performed his part of contract, but the defendant admitted that he received an amount of Rs.60 Lakhs from the plaintiff and gave reply as per Ex.P.7. Though the defendant denied the contract, but he admitted that he received Rs.60 Lakhs from plaintiff.
15. On perusal of the pleadings, exhibits and oral evidence, the contract between the plaintiff and defendant is denied by the defendant, but he admitted that he received an amount of Rs.60 Lakhs from the plaintiff as hand loan. Accordingly, defendant has given reply as per Ex.P.7.
16. Here in the instant case, the defendant was having an opportunity by appearing before this Court and contesting the claim of the plaintiff. The defendant has failed to avail its defence. On the other hand, there is no ground to disbelieve the claim of the plaintiff and the oral and documentary evidence on record clearly establishes the claim of the plaintiff in respect of suit claim is concerned.
17. That, on perusal of the Ex.P.8 it clearly goes to show that the plaintiff has deposited an amount of Rs.60 Lakhs in the name of defendant. The defendant has also admitted the said claim amount in his reply Ex.P.7. But, the only contention of the defendant is that, it has not at all entered into agreement with the plaintiff regarding the Sy.No.46, Block 34/2, measuring 3 acres 20 guntas situated at Doddajala Village, Devanahalli, Bangalore North. On denial of the defendant as per Ex.P.7 regarding the sale of above said Sy.No.46, the plaintiff has filed the suit for recovery of earnest money of Rs.60 Lakhs. The defendant has admitted the receipt of the said amount in his reply. It is well settled law that, as per Section 58 of the Indian Evidence Act, admitted facts need not be proved. Hence, plaintiff is entitled to the recovery of Rs.60 Lakhs from the defendant.
18. The plaintiff has claimed interest at the rate of 12% from 25.11.2015 till the suit and also claimed interest at the rate of 18% p.a. from the date of suit till the date of realization. The plaintiff has claimed the higher rate of interest. Hence, he is not entitled to interest at the rate of 12% and 18% as claimed by it. The plaintiff is entitled to interest at the rate of 9% p.a. from 25.11.2015 till its realization, which is just and proper. Hence, answer point No.1 partly in affirmative.
19. Point No.2 : - In view of my findings on point No.1, I proceed to pass the following:
ORDER Suit of the plaintiff is hereby partly decreed with costs.
The defendant is hereby directed to pay Rs.60,00,000/- (Rupees Sixty Lakhs) along with interest at the rate of 9% p.a. from 25.11.2015 till its realisation within two months from the date of this order.
Draw decree accordingly.
(Dictated to the Judgment Writer, typed directly on computer, script corrected, signed and then pronounced by me in the open court, this the 30th day of November, 2018.) (KHADARSAB), XXXIX Additional City Civil & Sessions Judge, Bangalore City.
*** ANNEXURE
1. List of witnesses examined for plaintiff:
P.W.1 : Ratan Lath.
2. List of documents exhibited for plaintiff :
Ex.P.1 Resolution extract dated 3/2/2018 Ex.P.2 Copy of the memorandum of association and articles of association Ex.P.3 Form No.41 issued by the Deputy commissioner Bangalore dt 6/10/2010 Ex.P.4 Office copy of the notice dt 24/11/2017 Ex.P.5 Postal receipt dated 25/11/2017 Ex.P.6 Postal acknowledgement dated 27/11/2017 Ex.P.7 Reply given by defendant dated 28/11/2017 Ex.P.8 Acknowledgement dated 25/11/2015 (KHADARSAB), XXXIX Additional City Civil & Sessions Judge, Bangalore City.
***